====================================================== Birju Ram, son of Late Churaman Dusadh @ Churaman Paswan, resident of village-Pachhurukhi v. The State Of Bihar
Case Details
IN THE HIGH COURT OF JUDICATURE AT PATNA Criminal Revision No.575 of 2013 ====================================================== Birju Ram, son of Late Churaman Dusadh @ Churaman Paswan, resident of village-Pachhurukhi, P.S.-Khijarsarai, District-Gaya. .... .... Petitioner/s Versus The State Of Bihar .... .... Respondent/s ====================================================== Appearance: For the Petitioner/s : Mr. Mahendra Thakur, Adv. Mr. Sudhir Kumar Sinha, Adv. For the State : Mr. Damodar Prasad Tiwary, APP. ====================================================== CORAM: HONOURABLE MR. JUSTICE ADITYA KUMAR TRIVEDI ORAL ORDER 3. 29-07-2013 Heard learned counsel for the petitioner as well as learned Additional Public Prosecutor. Petitioner has challenged judgment of confirmation dated 05-03-2013 passed by Ad hoc Additional Sessions Judge, IIIrd, Gaya in Cr. Appeal No.107 of 2009 / 24 of 2002 whereby and
Legal Reasoning
whereunder the judgment dated 25.02.2002 passed by Sri S.P. Pandey, the then Judicial Magistrate, 1st Class in G.R. No.1381 of 1999 held the petitioner guilty for an offence punishable under Section 409 of the IPC and directed to undergo R.I. for two years as well as also slapped with fine appertaining to Rs.2000/- in default thereof to undergo additional imprisonment of six months. P.W.-9, Shashi Shekhar Prasad, filed written report (Ext.-8) disclosing therein that on getting complaint the District Magistrate had directed him to inquire into the matter whereupon he had gone to Chandauti Block where he found Birju Ram (petitioner) Patna High Court CR. REV. No.575 of 2013 (3) dt.29-07-2013 2 as Najir and Ram Chandra Prasad Verma a retired personnel. The beneficiaries were also present who have complained that there happens to be illegal deduction by the Najir while disbursing the amount under Indira Awas Yojna. The statement of the aforesaid beneficiaries were recorded by PW-5, Hemant Kumar, P.A. of Brij Kishore, BDO (PW-4) and happens to be under Ext.5 Series pertaining to Rameshwar Manjhi, Genhi Manjhi, Most. Sundari Devi, Dhaneshwar Manjhi and Chandra Manjhi. They have also stated that amount so deducted have been kept by Ramchandra Prasad Verma from whose possession Rs.23,700/- has been seized. The aforesaid cash along with statement of the witnesses were produced before the police official and the seizure list as is evident happens to be Ext.7 of the record was prepared. There also happens to be the inculpatory extra judicial confessional statement of Ram Chandra Prasad Verma and same happens to be Ext.6. On the basis of the aforesaid written report Chandauti P.S. Case No.61 of 1999 was registered under Section 406, 409 of the IPC and after investigation charge sheet was also submitted under the aforesaid sections however during course of trial Ram Chandra Prasad Verma was charged for an offence punishable under Section 411 of the IPC while petitioner Birju Ram was charged for an offence punishable under Section 409 of the IPC and the trial followed with criminal appeal so filed against the verdict ultimately resulted adverse to the interest of petitioner hence this revision. Patna High Court CR. REV. No.575 of 2013 (3) dt.29-07-2013 3 While challenging the concurrent finding of the learned courts below, it has been submitted on behalf of petitioner that though the trial court had convicted the petitioner taking into account the prosecution story coming out from the evidence of the PWs while the appellate court crimple it and based its finding only on the basis of Ext.6, inculpatory extra judicial confessional statement of co- accused which cannot be held solely sufficient for that purpose unless and until so corroborated by the witnesses. From the evidence available on the record, it is apparent that even accepting the genuineness of Ext.6, it is not found corroborated and on account thereof, the Ext.6 could not be held sufficient in its independent capacity to justify the conclusion arrived at by the learned appellate court. So submitted that the approach of the successive courts with regard to appreciation of the prosecution evidence appears to be quite independent contrary to each other and in the aforesaid background the benefit has to be given to the petitioner. On the other hand, the learned Additional Public Prosecutor opposed the prayer and submitted that as per Section 30 of the Evidence Act, the inculpatory extra judicial confession of co- accused is admissible and been permitted to be used against the co- accused during course of appreciation of the material available on the record. Therefore, appreciation of Ext.6 by the learned appellate court happens to be in accordance with Section 30 of the Evidence Act. Now coming to the evidence of the witnesses, it has been Patna High Court CR. REV. No.575 of 2013 (3) dt.29-07-2013 4 submitted that PW-4, PW-5, PW-9, PW-10 have supported the genuineness of Ext.6 and in likewise manner PW-6 had proved the seizure list where from it is apparent that Rs.23,700/- was recovered and seized from the possession of co-accused. Therefore, the conviction and sentence so recorded by the learned courts below are legal, just and proper and did not attract interference. From perusal of the lower court record, it is apparent that complaint with regard to deduction of money while disbursing the amount under Indira Awas Yojna was made by the persons whose statement are under Ext.5 Series. The aforesaid statement was recorded by PW-5, Hemant Kumar, the P.A. of BDO Chaundati, PW-4 who had also endorsed the same. Unfortunately, the prosecution could not be able to produced the aforesaid five persons namely, Rameshwar Manjhi, Genhi Manjhi, Most. Sundari Devi, Dhaneshwar Manjhi and Chandra Manjhi for evidence and on account thereof, the aforesaid statement had become inadmissible in the eye of law. None of the witnesses so examined on behalf of prosecution have come forward to say that there was any sort of deduction of the amount during course of disbursing the amount under Indira Awas Yojna by the Najir, petitioner Birju Ram. Therefore, in absence of positive and concrete material, the presence of Ext.6 inculpatory extra judicial confessional statement of co- accused really is not found having a sound plank whereupon a definite opinion could be form regarding complicity of petitioner in a Patna High Court CR. REV. No.575 of 2013 (3) dt.29-07-2013 5 way as suggested by the prosecution. In similar fashion the presence of Ext.7, the seizure list happens to be because the same was produced by the informant PW-9, Shashi Shekhar Prasad without having independent source of search and seizure. Altogether twelve witnesses have been examined on behalf of prosecution as well as are nine exhibits on this score but the sheet anchor, presence of Rameshwar Manjhi, Genhi Manjhi, Most. Sundari Devi, Dhaneshwar Manjhi and Chandra Manjhi on account of their absence have buged the prosecution. Section 409 is a penal provision attracting prosecution of public servant, banker, merchant or agent in case is found indulged in criminal breach of trust. The criminal breach of trust has been defined under Section 405 of the IPC whereunder there happens to be ingredients “….conversion to its own use that property, or dishonestly used or disbursed of that property in violation of any direction of law prescribing the mode in which such trust is to be discharged…” would attract the application of 409 of the IPC in case having presence of five person named above because of the fact that though there happens to be consistent evidence on the record more particularly by the BDO (PW-4) that entrustment was there in favour of petitioner being a Najir to disburse the amount so allotted in terms of circular amongst the beneficiaries. However, on account of absence of the beneficiaries it could not be brought up on record that the amount was any way pilferaged by the petitioner during course of Patna High Court CR. REV. No.575 of 2013 (3) dt.29-07-2013 6 disbursement and was retained by him for his own use contrary to the terms of entrustment. Recovery of amount from co-accused and inculpatory extra judicial confession (Ext.6) is not going to give any promotion to the prosecution version as none is these to suggest that there was violation of direction of law prescribing the mode in which such trust was to be discharged. Consequent thereupon, the successive findings recorded by the learned courts below are set aside. Petition is allowed. Petitioner is under custody, hence is directed to be released forthwith if not wanted in any other case. Let this order be faxed to the court concerned at the cost of the petitioner. PN/- (Aditya Kumar Trivedi, J.)